The K’ómoks First Nation is appointing a justice of the peace to preside over hearings for offences violating its own laws in what the nation says is a first in Canada.
The nation has its own laws to control low-level offences such as trespassing, nuisance, illegal dumping and other environmental concerns, but police are often unwilling to enforce the nation’s laws, rendering them ineffective.
The nation has hired Marion Buller, a Mistawasis Nêhiyawak Cree Nation member who served 22 years as a judge and played a crucial role in establishing B.C.’s First Nation court, as its justice of the peace.
Her role will be similar to that of a provincial court judge ajudicating less serious offences, but she’ll act within the context of the nation’s laws and its approach to justice, said Amy Jo Scherman, a lawyer with First Peoples Law representing the nation.
When one of the nation’s laws is alleged to have been violated, it will be Buller’s role to preside over a hearing and render a decision on whether the law was contravened and what consequence is appropriate, Scherman said.
Potential consequences are set out in the nation’s laws, and could include fines and restitution. While incarceration is possible as a punishment under the nation’s laws, it’s unlikely the nation would ever pursue that in a prosecution, Scherman said.
The nation does not have the ability to create criminal laws for and adjudicate serious criminal matters, such as assault and murder, she said.
The nation plans to hire an enforcement officer who can issue tickets and summon people to a hearing, but the role would not have the full scope of police powers and the intention is not to make arrests, Scherman said.
Buller said she will be “an independent change-maker” for the nation’s goals of self-determination and community safety.
Her appointment will advance decolonization and benefit the people of K’ómoks and many other First Nations across the country, said Chief Robert Louie.
K’ómoks has 350 members, according to the Lands Advisory Board. The nation’s traditional territory stretched from Kelsey Bay in the north to Hornby and Denman Island in the south, including the watershed and estuary of the Puntledge River.
The nation won a precedent-setting trespass case in 2018 when B.C.’s provincial court upheld the nation’s authority to enforce its own laws.
The nation found itself unable to evict a renter on reserve lands whose lease had been terminated and, despite discussions with RCMP, officers wouldn’t intervene, Scherman said at a news conference.
In other situations, the Residential Tenancy Branch, a provincial agency, could step in, but reserve land is federal jurisdiction, said John Burns, also with First Peoples Law.
K’ómoks has trespass laws under its law code and the nation proceeded successfully with a private prosecution to remove the person by enforcing its law.
“It was a big win and a big success at the time,” Scherman said, because there had never been a successful prosecution under a First Nation law in Canada.
